Calmore: "The
civil rights rulings of the court have not been sustainable. They
were too formal to stand up to the racism that is embedded in society
and institutions.”

Posted
February 18, 2004Calmore Laments Death of Legal Liberalism

The progress on racial and social justice issues that the Warren
Court began is now stalled, according to University of North Carolina
law professor John Calmore, who spoke on “The Cultural Legacy of
the Warren Court” Feb. 16 at the invitation of the American
Constitution Society. Law professors Earl
Dudley (a law clerk of Chief Justice
Earl Warren) and Lillian
BeVier also offered some comments on the
Warren Court and Calmore's talk.

“The legal liberalism represented by the Warren Court is dead
and won't come back again,” said Calmore, who teaches critical
race theory. “In every class I teach, the word ‘oppression' comes
up. The oppressed live in a condition that leaves them static,
limited and expendable. That's not something you law students experience.
The Warren Court intervened in that oppression,” most importantly
in its Board v. Board of Education ruling that outlawed
racial segregation in public schools.

Calmore said he did not mean to imply that he personally, a successful
black law professor, was among the oppressed. “I stand before you
personifying the positive legacy of the Warren Court.”

Dudley clerked for
Chief Justice Earl Warren.

But most African-Americans feel ambivalent about the Warren Court, he said. “It's what [comedian] Chris Rock said: When you're an
African-American you see the United States as the uncle who paid
your way through college, but who molested you when you were young.”

Calmore characterized the Warren Court's social advances as taking
three forms. The Court succeeded in rule-shifting (finding new
rights and remedies for racial injustice), in altering the conduct
of the government and private institutions, and in shifting cultural
attitudes towards new moral standards. The attitude changes "have
been more sustainable than the court's jurisprudence,” he
said. “The
civil rights rulings of the court have not been sustainable. They
were too formal to stand up to the racism that is embedded in society
and institutions.”

“The genius of today is to claim that racism only exists in individuals,” said
Calmore. He did acknowledge that “easy-to-spot racism is somewhat
a thing of the past,” but went on to assert that the legacy of
the Court has been thwarted by “right-wing” resistance. “Social
injustices are now seen as natural misfortunes,” he said.

Racism has merely camouflaged itself along “a continuum of substitutes
for discrimination,” he contended. “Status relationships have
not been dismantled. Hierarchies are preserved.” As social injustices
are challenged, he said, groups break away from institutions and
abandon the rhetoric of the old point of view, but the point of
view is otherwise retained. “Like a virus, it mutates to a new
form.”

Calmore urged students to take up “third-dimension lawyering,” a
tactical style he called “an advocacy response.” First-dimension
lawyering is rights-based advocacy in which cases are brought for
their test values and to produce reforms, he explained. “A reform
goal is not a transformative goal. In these cases people perceive
their injuries as ones that can be remedied in court. It's deeply
faithful to legal liberalism and has had its best days.” Second-dimension
lawyering is “public action with political ramifications.
Advocacy seeks to impact the public consciousness.” It is less
a matter of whether the case is won than if it “widens public imagination,” he
said.

In third-dimension lawyering the aim is to raise the consciousness
of the client group. “Acts of resistance translate into opportunities.
This is the kind of lawyering that needs to be done now to advance
social justice.”

He told students to “resist any signs of subordination according
to gender, race, class or sexual orientation” and to insist that
the student body include a “critical mass of people of color,” especially
black men. He advised black students “not to give up on white students.
Most whites are not really racists, they are just confused.” He
said white students, besides resisting stereotypes, “must come
to terms with white privilege and what it means.”

BeVier: “New legal rules are
not cure-alls.”

In concluding comments, professors Dudley and BeVier agreed with
Calmore that the courts alone cannot fix the problems in society.
Issues of injustice must also be addressed politically and individually.
Dudley credited Brown with giving a “jump start” to the civil rights
movement, but noted that it wasn't until Congress passed civil
rights legislation in 1964 and 1965 that tied to noncompliance
to federal funding losses that the southern states began to act
seriously against segregation. “New legal rules are not cure-alls,” said
BeVier, who noted recent news stories about individual acts of
compassion and trust that led to triumphs over instances of suffering
and injustice.• Reported by M. Marshall